Not Equal

The recent ruling in Northern Ireland on the case of the gay cake shows that the law and justice system have yet to get to grips with the issues underlying equality law. To most people, the case doubtless appeared to be one of religious conscience versus gay rights and, in a sense, it was. However, the case was largely msirepresented in the media and it seems as if the misunderstanding extended to the District Judge ruling on the case.

At it’s heart, the case was about accessing services. Now, had it been a case of a bakery refusing to sell someone a cake or any other product off its shelf, it would have been a clear cut case of discrimination whether they were refused because of their sexulity, gender, race or anyother baseless reason, because everyone in Britain has the right to go into a shop and purchase goods or services within reasonable limits. By extension, when dealing with personalised goods of a generic sort, there’s no good case for turning a customer away, even if you’re not entirely happy about serving them, because of the generic nature the personalisation. By generic, to use a relevant example, I mean a cake that says “Congratulations on your wedding!” and allows names to be added. A Christian baker might not be pleased at being asked to put “Adam and Steve” on it, but adding names isn’t exactly a real source of offence and worry about who might receive the cake is disproporationate to its generic nature. (After all, is Steve a man or a woman? If the baker is worried they’re gay, shouldn’t they be worried they may be atheists or bigamists or any number of other potential conflicts of faith?)

But, this particular case didn’t involve general goods nor of a generic sort. Firstly, it involved a one-off made-to-order cake. Now, although everyone should have equal access to such services (in the sense that, for example, refusing to make someone an inoffensive birthday cake because of their race or sexuality is wrong), the conscience of the person providing the service should be taken into account. Of course, in many cases, where a business has enough and varied staff, this will just mean moving the task to someone who doesn’t have an issue with it (in the same way that a Muslim cashier in a supermarket who refuses to handle alcohol isn’t an issue if you can swap them with another worker when the need arises). But, that won’t always be possible, and, in most cases, although it may be awkward or disappointing, the worker should be entitled to refuse: only a jerk is going to want to upset someone to achieve an end they could achieve by going elsewhere.

Of course, there will always be grey areas where we may debate whether the offence is sufficient to warrant refusal (essentially, if it is on the par with the generic goods referenced above, we can agree that it probably isn’t). However, some things clearly are and that is what brings us to the crux of this case.

The cake that the baker was asked to specially asked to make was one calling for the legalisation of same-sex marriage in Northern Ireland, something that was then and remains illegal. It was an overt political statement and, whether you agree with the campaign or not, nobody should be forced to back a political or social campaign they disagree with, if only because it opens the doorway for harassment. (Similarly, if we go back to the atheist versus Christian bus advertising campaigns a few years ago, while everybody was worrying about whether passers-by might be offended, nobody stopped to consider whether a driver might be forced to effectively promote a stance they disagreed with.)

A further problem with the ruling was the fact that the cake was calling for the legalisation of an illegal act and the judge has effectively ruled that nobody can turn down such political advertising. If applied without logic, we would end up with a set of two-tier rights where not everyone is equally and only ‘socially acceptable’ stances were protected (so someone could demand a Christian produce material in support of same-sex marriage, but a homosexual would be allowed to refuse to produce material against it). But, if the ruling were to be applied logically, the results would be even worse. As it stands, the ruling is not only a charter for people to deliberately cause offence, but acting within the law is no defence. Effectively, a black baker could be required to produce a cake promoting racism or someone with children (or even the victim or abuse) forced to provide material support to legalising paedophilia. Clearly, this goes far beyond any notion of equality.

Hopefully, a future ruling will restore sanity by making it clear that equality means equality of access and not carte blanche to demand anything at all. People should be able to do their jobs with a clear conscienceand especially shouldn’t be forced to back campaigns against their will. There was nothing stopping the man in question from going to another baker who didn’t have an issue with the cake (which is, in fact, what he did), nor was there any restriction upon him ordering any other cake from the bakery in question. Instead, by bringing the issue to court and the foolish misjudgement in the case, it is quite likely that many such services will now be discontinued or curtailed to protect businesses against such lawsuits – and that disadvantages everybody.